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Paul v. Astrue


January 8, 2009


The opinion of the court was delivered by: Carla M. Woehrle United States Magistrate Judge


The parties have consented, under 28 U.S.C. § 636(c), to the jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks review of the Commissioner's denial of disability benefits. As discussed below, the court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.


Plaintiff Eugene Paul was born on September 9, 1953, and was fifty-three years old at the time of his administrative hearing. [Administrative Record ("AR") 48, 252.] He has three years of college education and past relevant work experience as a production worker and telemarketer. [AR 18, 256.] Plaintiff alleges disability on the basis of anxiety and depression, high blood pressure, a ruptured left ear drum and gout. [AR 30.]


Plaintiff's complaint was lodged on December 3, 2007, and filed on December 14, 2007. On August 19, 2008, defendant filed an answer and plaintiff's Administrative Record ("AR"). On November 25, 2008, the parties filed their Joint Stipulation ("JS") identifying matters not in dispute, issues in dispute, the positions of the parties, and the relief sought by each party. This matter has been taken under submission without oral argument.


Plaintiff applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") on September 13, 2005, alleging disability since August 29, 2005. [AR 48, 236.] After the application was denied initially and upon reconsideration, plaintiff requested an administrative hearing, which was held on July 10, 2007, before Administrative Law Judge ("ALJ") Barry S. Brown. [AR 252.] Plaintiff appeared with a representative and testified. [AR 253, 254.] The ALJ denied benefits in a decision filed on August 20, 2007. [AR 13-19.] When the Appeals Council denied review on November 9, 2007, the ALJ's decision became the Commissioner's final decision. [AR 5-7.]


Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's (or ALJ's) findings and decision should be upheld if they are free of legal error and supported by substantial evidence. However, if the court determines that a finding is based on legal error or is not supported by substantial evidence in the record, the court may reject the finding and set aside the decision to deny benefits. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720. It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. To determine whether substantial evidence supports a finding, a court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162.



To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 C.F.R. § 404.1520, § 416.920. If a claimant is found "disabled" or "not disabled" at any step, there is no need to complete further steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial, and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 1288. If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner (at step five) to prove that, considering residual functional capacity ("RFC")*fn1 , age, education, and work experience, a claimant can perform other work which is available in significant numbers. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920.


Here, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged disability onset date (step one); that plaintiff had "severe" impairments, namely hypertension and hepatitis C (step two); and that plaintiff did not have an impairment or combination of impairments that met or equaled a "listing" (step three). [AR 15.] Plaintiff was found to have an RFC for the full range of light work. [Id.] Based on plaintiff's RFC and evidence of his past relevant work as it was defined in the Dictionary of Occupational Titles ("DOT"), the ALJ found plaintiff able to return to his past relevant work as a production worker or telemarketer (step four). [AR 18.] Accordingly, plaintiff was found not "disabled" as defined by the Social Security Act. [Id.]


The parties' Joint Stipulation sets out the following disputed issues:

1. Whether the ALJ properly considered the opinion of Dr. Shaniah Sicariaz-Lambert, an examining physician;

2. Whether the ALJ properly considered the opinion of Dr. Ernest Bagner, an examining physician;

3. Whether the ALJ properly evaluated plaintiff's ability to return to his past relevant work; and

4. Whether the ALJ properly considered plaintiff's mental and physical impairments as reflected in the opinions of Drs. Lambert and Bagner.

[JS 2.]

As discussed below, Issue Two is dispositive.


According to the record, plaintiff stated he was injured in August 2005, during Hurricane Katrina, when an object struck his head, rupturing his left eardrum. [AR 182.] In October 2005, plaintiff underwent an internal medicine evaluation conducted by Dr. Lambert. [AR 170-74.] Plaintiff complained of shortness of breath and chest pain. [AR 170.] Plaintiff also reported, among other things, a history of hypertension, hepatitis C without a history of jaundice, and that he has been smoking cigarettes for thirty-six years. [AR 171.] Dr. Lambert conducted a physical examination, but no medical records were submitted for her review. [AR 171-73.] Upon examining plaintiff's head, ears, eyes, nose and throat, Dr. Lambert noted they were "normocephalic without evidence of previous trauma." [AR 172.]

Dr. Lambert diagnosed plaintiff with shortness of breath, hypertension currently well controlled, and hepatitis C without significant evidence of liver decompensation. [AR 174.] In her functional assessment, Dr. Lambert stated that plaintiff should be limited to work consistent with a medium exertional level, but with pulmonary limitations against exposure to dust, pollen, cigarette smoke and noxious elements, among other things.*fn2

In the administrative opinion, the ALJ summarized Dr. Lambert's examining opinion, including her findings, as noted above, of plaintiff's history of hypertension and hepatitis C without liver decompensation, and his functional limitation to medium work with certain pulmonary restrictions, such as avoidance of dust, pollen or smoke, but also noted plaintiff's long history of smoking. [AR 17.] The ALJ took Dr. Lambert's opinion into account in the sequential evaluation by finding that plaintiff's hypertension and hepatitis C were severe impairments at step two; however, the ALJ's final RFC assessment of the full range of light work was more restrictive exertionally than Dr. Lambert's functional assessment of medium work but did not include the pulmonary restrictions against dust, pollen, cigarette smoke and noxious elements. [AR 15.]

In Issues One and Four, Plaintiff argues that the ALJ did not properly take into account Dr. Lambert's opinion because the pulmonary restrictions*fn3 were excluded in the ALJ's RFC assessment. [JS 3, 13.] The ALJ appears, however, to have rejected these restrictions as futile in light of plaintiff's long history of smoking cigarettes. [AR 17.] Moreover, other than Dr. Lambert's opinion, the record contains no evidence that plaintiff suffered from conditions requiring such restrictions, and even Dr. Lambert's opinion itself must be fairly read, on the whole, as consistent with the ALJ's conclusion that plaintiff lacks significant non-exertional functional limitations restricting him from work. Even assuming that the ALJ improperly ignored the restrictions, any such error was harmless because there is no evidence that the named irritants have an excessive presence in plaintiff's past occupations or in most occupations. See generally Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) (finding harmless ALJ's failure to incorporate limitations identified by medical sources when jobs at issue infrequently required restricted functions); see also Dictionary of Occupational Titles ("DOT") Section 229.357-014 ("Telephone Solicitor")*fn4 ; Social Security Ruling ("SSR") 85-15, 1985 WL 56857 at *8 ("Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.")


In May 2006, plaintiff underwent a complete psychiatric evaluation conducted by Dr. Ernest Bagner. [AR 209-212.] Plaintiff reported depression, nervousness, feelings of helplessness and hopelessness and difficulty with concentration and memory; he also reported a psychiatric hospitalization for drugs but that he has been sober for six months. [AR 209, 210, 211.] Dr. Bagner noted that plaintiff's current level of functioning included cleaning, cooking, watching television, and that he is able to manage money and take the bus. [AR 210.] Upon mental status examination, Dr. Bagner observed, among other things, a constricted affect, mild slurring of speech, tight thought processes, average intelligence, fair insight and judgment, and normal reality contact. [AR 211.] Dr. Bagner made a diagnosis of polysubstance abuse in remission. [Id.] As for limitations, Dr. Bagner wrote that plaintiff would have zero to mild limitations maintaining concentration and attention and completing simple tasks; mild limitations interacting with supervisors, peers, and the public and completing a normal workweek without interruption; and mild to moderate limitations handling normal stresses at work. [Id.]

In the decision, the ALJ summarized Dr. Bagner's opinion, including the functional limitations above. [AR 17.] However, the ALJ did not refer to any mental impairment at step two of the sequential evaluation nor include the functional limitations in the RFC determination. [AR 15.] The ALJ also found that plaintiff's "mental impairments are all secondary to his drug abuse, which appears to be in remission." [AR 18.] Plaintiff argues that reversal is required because Dr. Bagner's opinion was not properly considered. [JS 6.]

Although it appears that the ALJ found that plaintiff did not have a severe mental impairment, it was error to exclude the functional limitations set out by Dr. Bagner without first providing an explanation for doing so. The ALJ is required to consider all of the limitations imposed by the claimant's impairments, even those that are not severe; even though a non-severe impairment standing alone may not significantly limit an individual's ability to do basic work activities it may - when considered with limitations or restrictions due to other impairments -- be critical to the outcome of a claim. SSR 96-8p, 1996 WL 374184 at *5; Carmickle v. Commissioner, 533 F.3d 1155, 1164 (9th Cir. 2008); Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). Moreover, plaintiff's alleged mental impairment should have been accounted for in the sequential evaluation process even if the impairment was attributed wholly to plaintiff's history of drug abuse. See Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). Accordingly, remand is required for reassessment of plaintiff's RFC, including all of his relevant limitations.


In light of the decision above, the ALJ will reassess the step four conclusion and, if necessary, proceed to step five.


The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Harman, 211 F.3d at 1179 (decision whether to remand for further proceedings turns upon their likely utility). However, where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. Here, as set out above, outstanding issues remain before a finding of disability can be made. Accordingly, remand is appropriate.


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.

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